Success

Did I say success?  Oops. I meant to say “succession.”  Be prepared to yawn & roll your eyes: this post is about Succession Planning.

Some background.

In 2009, the Vermont Supreme Court adopted a series of amendments to the Rules of Professional Conduct.  Among the changes, the addition of Comment 5 to Rule 1.3.  I’m sure each and every one of you just thought to your self “self, rule 1.3…the rule on diligence.”  Good job.

Rule 1.3 requires an attorney to act with reasonable diligence and promptness when representing a client.  Comment [5] states:

  • “To prevent neglect of client matters in the event of a sole practitioner’s death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action.”

In 2011, I sent this memo the bar.  Shortly thereafter, Mary Ashcroft, Jim Knapp, Kevin Ryan and I embarked upon a series of CLEs on Succession Planning.  Attendance was great.  However, most who attended were much more interested in how to sell a law practice than in matters related to preparing a succession plan.

Yes, it’s important to put significant thought into selling a practice and transitioning out of practice. However, what Comment 5 and I want you to think about is what I’ve jokingly called a “semi plan.”  What will happen to your practice if you walk out the door tonight and get hit by a semi?  As a profession, we spend a lot of time advising others on how to plan for the future.  We need to do the same.

An email from my friend and colleague Josh Simonds prompted the idea for this post.  I’m going to chat with the VBA’s Jennifer Emens-Butler about reprising the CLEs.  In the meantime, from my perspective, the key to a succession plan is this: in the event of your death, disability, or unavailability,  is your successor agreeing to step in to represent your clients, or, is your successor inventorying your files and practice in order to protect your clients’ interests?

You’re free to set up either type of succession plan.  From what I’ve read and heard, I suggest the latter. But, do some research.

I’ve often referred to the New York State Bar’s Planning Ahead Guide which is HERE. The Cal State Bar has published some guidance.  It’s HERE.  The Washington State Bar Association has published this.

Failing to plan is planning to fail.  I know none of you plans to fail.  So, consider a plan.

That would be success.

 

Succession Planning: can your clients make it without you?

Many of you spend a lot of time advising your clients to prepare for the worst. Have you taken the time to protect your clients if the worst happens to you?

An unexpected diagnosis. A car accident. A skiing mishap. What if you had been away during Hurricane Irene, unable to return to Vermont for that trial, or that deposition, or that closing?

No matter the reason, what if you are not available? Will your clients be protected?

Does anyone know where your files are? Or where you keep your schedule and deadlines? Or the password to your cloud storage platform?  Or how to access your trust account?

Rule 1.3 of the Vermont Rules of Professional Conduct requires lawyers to act with reasonable diligence while representing a client. Comment 5 to Rule 1.3 states that “to prevent neglect of client matters in the event of a sole practitioner’s death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with the applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action.”

Among other things, a sound succession plan will help to ensure that:

1. deadlines will be met.

2. disbursement of funds held in trust will not be delayed.

3. client files and property will be located and safeguarded.

4. clients are protected.

The Vermont Bar Association has presented seminars on Succession Planning.  To review a seminar by DVD, go to this list and look for Seminar ID #483.  You might also want to review this helpful guide from my colleagues at the Washington State Bar Association or this article from Mark Bassingthwaighte of ALPS.